In its decision dated April 27, 2018, the Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) held that the trial court erred in granting a directed verdict to the defendant primary care physician in a New York medical malpractice wrongful death action where the trial judge implicitly found the defendant’s testimony credible. The New York Appellate Court determined that the credibility of the defendant primary care physician was an issue to be determined by the jury.
The plaintiff filed her New York medical malpractice wrongful death lawsuit against her husband’s primary care physician, alleging that the defendant was medically negligent in treating her husband who died from cardiac arrhythmia three days after seeing the defendant. The issue at trial was whether the defendant recognized the severity of the decedent’s condition and, if so, whether he conveyed that severity to the decedent before the decedent “declined” to go to the hospital. The trial court granted the defendant’s motion for a directed verdict at the close of the plaintiff’s proof, and the plaintiff appealed.
The plaintiff presented evidence during the New York medical malpractice trial that her husband was a family man who was well-attuned to his cardiac health, having lost his father to a sudden cardiac incident. When presented with the possibility of a heart-related issue, the decedent had no problem going to a hospital emergency room, which he did only a month before his death. On Friday, September 3, 2010, the decedent presented to the defendant complaining that the day before he had been unable to walk the length of his driveway without stopping three times for shortness of breath, a driveway he normally traversed without incident. The decedent also complained that on the morning of his appointment he was sweating profusely and felt pressure in his chest when he attempted to climb a ladder.
The parties’ experts testified during trial that the decedent’s symptoms established that he was suffering from unstable angina, which is a life-threatening acute coronary condition that carried with it an imminent risk of a fatal cardiac episode if left untreated, was highly treatable, and that the decedent’s death was completely preventable. The plaintiff’s expert testified that it would be a breach of the standard of care for any physician to fail to recognize the severity of the decedent’s condition and, further, to fail to convey the severity of that condition to the patient.
The defendant testified during the New York medical malpractice wrongful death trial that he recognized the decedent’s life-threatening condition and he conveyed to the decedent that he should go to the hospital, that he knew that there needed to be more testing done, but the decedent adamantly refused to go to the hospital and did not give the defendant a good reason why. However, the defendant’s notes did not reflect any urgency: the only notation made by the defendant concerning that conversation was, “Discussed admit on Fri of holiday [weekend], declined.” Furthermore, the defendant did not set up any follow-up appointment with a cardiologist for over five days and testified that he was surprised to learn of the decedent’s death three days after his appointment with the decedent.
The plaintiff’s expert cardiologist testified at trial that the standard of care was to “inform the patient that they have an immediate life-threatening condition . . . [Y]ou can experience sudden death at any point. If you go home, you could die walking into the house. Die in your sleep. Die in your shower. That it is a completely preventable death and that the only reasonable medical course is to call 911 because that patient could die driving to the hospital.” If the patient refuses hospitalization, the doctor must discern the reason why the patient is refusing in an effort to make sure the patient fully understands the severity of his or her condition.
In the plaintiff’s expert’s opinion, the defendant’s note was not reflective of the level of urgency that should have been conveyed to the decedent, which meant that the defendant either did not understand the severity of the condition or he did not convey the severity of the condition to the decedent. The expert testified “within a reasonable degree of medical certainty” that, had the decedent gone to the hospital on September 3, 2010, “he would have survived this. He would have been treated.”
The New York Appellate Court stated that as with most wrongful death cases, this case is complicated by the death of the decedent, the only person who could have directly refuted the defendant’s factual testimony. In a wrongful death case, a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence (the doctrine applies only to such factual testimony as the decedent might have testified to, had he or she lived, and the lesser degree of proof pertains to the weight which the circumstantial evidence may be afforded by the jury, not to the standard of proof the plaintiff must meet).
The New York Appellate Court held in this case: “Here, the only direct testimony regarding whether defendant recognized the severity of decedent’s condition and explained that to him ‘came from defendant . . . and, implicit in the court’s findings is that his testimony was credible. Issues of credibility, however, are for the jury’ … We agree with plaintiff that there are issues with respect to defendant’s credibility, and those issues should not have been determined by the court. In our view, this is not a case in which there is ‘absolutely no showing of facts from which negligence may be inferred’ … and we thus conclude that the court erred in granting defendant’s motion for a directed verdict.”
Source Bolin v. Goodman, 2018 NY Slip Op 02920.
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